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DRAFT DRAFT DRAFT <br /> <br />with resource development or recovery operations if the taking is compatible with the <br />preservation of the area nesting population (50 CFR 22.3). The area nesting population is <br />determined as the number of pairs of golden eagles known to have attempted nesting during the <br />preceding 12 months within a 10-mile radius of a golden eagle nest (50 CFR 22.3). The Service <br />will issue a take permit when there is a reasonable expectation that no significant long-term loss <br />of eagle habitat will result from the proposed action. <br />The BGEPA applies to Federal Agencies as well as individuals. A Solicitor's Opinion dated <br />June 30, 1982, initially concluded that the BGEPA did not apply to the United States because the <br />United States was not listed among the persons in 16 U.S.C. 668(c) to whom the Act applies. <br />However, following recent court (Humane Society v. Glickman: see above description in the <br />Migratory Bird Treaty Act section) and policy decisions, this Opinion was subsequently revoked <br />by a January 19, 2001 Department of Solicitor Opinion. Eagle permits are also required under <br />50 CFR Part 22 for Federal Agency actions. <br />It is the policy of the Department of the Interior that all projects by Departmental bureaus <br />comply with the BGEPA and to urge other Federal agencies to follow this policy as well. <br />Activities of the Federal government should comply with the intent of the BGEPA and should <br />refrain from actions that would result in the taking of bald or golden eagles. <br />Endangered Species Act (ESA); 16 U.S.C. 1513-1543 <br />The ESA provides protection to threatened and endangered raptors and their critical habitats. As <br />of this writing, the ESA protects the following raptor species in the Mountain-Prairie Region: <br />bald eagle (proposed for delisting) and the Mexican spotted owl (threatened). In addition, the <br />California condor was released in northern Arizona as an experimental population (50 CFR 17, <br />Subpart H). Current lists of endangered and threatened species in the Mountain-Prairie Region <br />can be obtained from the Regional Office in Denver or at http://www.fws.gov/endangered. <br />Section 9 of the ESA, as amended, prohibits any taking of listed species of fish or wildlife <br />without special exemption. "Take" under the ESA means to "harass, harm, pursue, hunt, shoot, <br />wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Harass is <br />further defined by the Service to include an intentional or negligent act or omission which <br />creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly <br />disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or <br />sheltering. Harm is further defined by the Service to include an act which actually kills or <br />injures wildlife. Such act may include significant habitat modification or degradation where it <br />actually kills or injures wildlife by significantly impairing essential behavioral patterns, <br />including breeding, feeding, or sheltering (50 CFR 17.3). <br />Birds of Conservation Concern <br />The 1988 amendment to the Fish and Wildlife Conservation Act mandates the Service to <br />"identify species, subspecies, and populations of all migratory nongame birds that, without <br />additional conservation actions, are likely to become candidates for listing under the Endangered <br />Species Act of 1973." Birds of Conservation Concern 2002 (BCC 2002) is the most recent effort